Section 1050.6 of the MTA's Rule of Conduct explicitly permits artistic performances in transit facilities, providing they do not obstruct pedestrian traffic, are at least 50 feet from a marked MTA entrance, 25 feet from a token booth, and aren't part of aggressive solicitation schemes. Puppeteer Kalan Sherrard appeared to be abiding by the law while he was performing in the Times Square subway station shortly before 1 a.m. on April 6th, but the police arrested him anyway.
Sherrard, 26, tells us that his arresting officer refused to tell him why he was being arrested. "At one point he said something about violating subway codes. He said, 'I asked you to move,' and I was like, yeah, but why?"
The arrest occurs within the first two minutes of the video.
An NYPD spokeswoman says Sherrard was charged with disorderly conduct for "creating a hazardous condition" and obstructing pedestrian traffic. "He was placing dolls on the mezzanine walkway…the dolls had mutilated faces, were encircled with chalk. They obviously had no legitimate purpose."
MTA spokesman Adam Lisberg declined to say whether Sherrard was violating the MTA's code, citing the agency's policy of not commenting on NYPD enforcement actions in the subway.
Sherrard, who performs for a living and has never been arrested in his five years of working underground, admits his art is unusual. "I don't do narrative or representational performance. Usually it's the entitled yuppie types or the frat bros who give me lip. But mostly I get a really good response from people, they think it's very different and they appreciate it."
He adds, "I get why the cops are aggressive at protecting Times Square, and if it's rush hour, it makes sense. But this was one in the morning."
Sherrard was given a DAT, and says he's still unsure as to whether he will accept it or go to trial. We were also curious about what was affixed to the top of his helmet.
"You mean metaphorically or physically?"
"Well, materially it's spray foam…like insulation. Metaphorically, it's the wetness, that tellurion wetness; it's the violence in euphoria."
Gothamist's managing editor John Del Signore was similarly arrested while he was performing at the Herald Square subway station in 2000. Of the city's steadily more stifling environment for artists and free speech, he writes:
Space and Time are doled out carefully by the City, with preference given to corporations with the most money and least offensive political messages. That this is unsurprising doesn’t make it any less revolting.